JAMES McGIVNEY, Appellant, v. JOHN H. PIERCE, Respondent, 87 Cal. 124

McFarland, J. The appellant inaugurated a contest in the superior court of Alameda County for the office of councilman of the city council of Oakland, under sections 1111 et seq. of the Code of Civil Procedure. The respondent demurred, upon the ground of want of jurisdiction; and the court sustained the demurrer, and entered judgment dismissing the contest. From said judgment this appeal is taken.

The judgment was rendered upon the ground that the act reincorporating the city of Oakland, which was enacted in March, 1854, gave to the common council of Oakland exclusive jurisdiction to hear and determine an election contest such as is involved in this proceeding.

Waiving the question whether the language of the charter is broad enough to include the subject-matter of the present litigation, and waiving the constitutional question as to the authority of the legislature to grant such judicial power to the common council, it is clear, to our minds, that the sections of the code above referred to, which were enacted long after the charter, necessarily repeal the provision of the charter here invoked.

Section 1111 provides that “ any elector of a county, city and county, city, or of any political subdivision of either, may contest the right of any person declared elected to an office to be exercised therein for any of the following causes.” Then follows an enumeration of various grounds of contest, including those set up in the complaint or statement in this case.

The succeeding sections provide that an elector wishing to institute such a contest must file with the county clerk a written statement setting forth certain specifications of grounds of contest; that the clerk must inform the superior court of the filing of such statement; that the court must call a special session at a certain time at the court-house to hear the contest; that a citation must be issued, etc., and that “the court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof.” It is further provided that “the court must pronounce judgment in the premises, either confirming or annulling and setting aside such election.” Of course a general statute does not always, by implication, repeal a special one.

It is always a question of intention, to be gathered from the language used, and from the subject-matter of the legislation. With respect to the matter before us, we think that the legislature, when enacting the sections of the code above mentioned, clearly intended to adopt a uniform rule for all election contests about the officers named in

section 1111, and necessarily repealed all former statutes inconsistent with that intention. The judgment appealed from is reversed, with instructions to the trial court to overrule the demurrer. Thornton, J., Fox, J., Paterson, J., and Beatty, C. J., concurred.